Janan George Harb v HRH Prince Abdul Aziz Bin Fahd Bin Abdul Aziz
| Jurisdiction | England & Wales |
| Judge | Peter Smith J |
| Judgment Date | 03 November 2015 |
| Neutral Citation | [2015] EWHC 3155 (Ch) |
| Court | Chancery Division |
| Date | 03 November 2015 |
| Docket Number | Case No: HC09C01992 |
[2015] EWHC 3155 (Ch)
IN THE HIGH COURT OF JUSTICE
CHANCERY DIVISION
Royal Courts of Justice, Rolls Building
Fetter Lane, London, EC4A 1NL
The Honourable Mr Justice Peter Smith
Case No: HC09C01992
Mr Tager QC and Mr Clarke (instructed by Hughmans Solicitors) for the Claimant
Mr Mill QC and Ms Fatima (instructed by Howard Kennedy LLP) for the Defendant
Hearing dates: 16, 17, 20–24 July 2015
INTRODUCTION
This is the trial of the Claimant's claim in this action. She claims an oral agreement made on or around 19th/20th June 2003 between her and the Defendant was concluded whereby the Defendant agreed to pay her £12m and to procure the transfer to her of two properties in Pier House Cheyne Walk Chelsea London (Apartment 108 and Apartment 129) ("the Properties").
The agreement was said to be made orally and in order to satisfy promises and assurances given by the late King Fahd of Saudi Arabia ("the late King") to provide for the Claimant financially for the rest of her life (he being the Defendant's father). It was also in return for the Claimant agreeing to withdraw and then withdrawing certain factual assertions she had made about King Fahd ("the late King").
The Defendant is a Royal Prince of Saudi Arabia.
The action has had somewhat of a lengthy procedural history. The events which are the subject matter of the claim occurred in 2003. The Claim Form was initially issued on 15th June 2009 (with less than 4 days of the six year limitation period remaining). It was issued by Stephen Hunt (as trustee in bankruptcy of the Claimant). The Claimant was declared bankrupt on 1st May 2008. Her total creditors according to the solicitors for the trustee in bankruptcy were in excess of £3m including at least £85,000 for gambling and large amount owed to relatives and friends for living expenses. The Claimant has had a lavish lifestyle.
PROCEDURAL HISTORY
Following the issue of the proceedings the trustee in bankruptcy obtained an order on 18th June 2010 from Mr Justice Norris giving him permission to discontinue the proceedings on terms as to payment of costs. The Claimant intervened in the proceedings and ultimately Mr Kevin Prosser QC (sitting as a Deputy High Court Judge) on 15th April 2011 set aside the notice of discontinuance and gave directions for the sale of the cause of action. On 27th October 2011 the Court of Appeal varied his order. On 8th August 2012 the trustee in bankruptcy assigned the action to the Claimant for £1,000. Consequently Master Teverson on 20th November 2013 ordered the Claimant to be substituted in the place of the trustee in bankruptcy and gave directions for the conduct of the action.
In response to the claim the Defendant raised a claim of sovereign immunity. An application based on that was heard by Mrs Justice Rose who delivered a judgment on 25th June 2014 dismissing it. The Defendant appealed. The Court of Appeal heard that appeal on 20th February 2015 and dismissed the Defendant's appeal. On 9th March 2015 Deputy Master Cousins gave directions for the conduct of the trial. Those were varied by consent by Mrs Justice Asplin on 17th March 2015. The Court of Appeal judgment was handed down on 13th May 2015.
COURT OF APPEAL DECISION
Their Lordships were troubled as to the point of determining the issue of sovereign immunity.
The concern arose out of paragraphs [7] and [8] of Rose J's judgment which were as follows:-
"[7]. The first assumption is that at the time of any alleged discussions and agreement with Mrs Harb in 2003, the prince was acting as a conduit for or representative of his father, King Fahd. The effect of this assumption is that it is accepted that the prince is entitled to the same immunity from suit in respect of any agreement concluded with Mrs Harb as his father was entitled to then and as his father's estate is entitled to now. I should make it clear that this assumption has nothing to do with the issue that might arise in contract law as to whether in 2003 the prince was contracting with Mrs Harb on his own behalf or as agent for his father – that is a different question.
[8]. The second assumption is that if Mrs Harb's claim had been brought whilst King Fahd was alive and serving as the sovereign head of state of Saudi Arabia, both the King and the prince would have been able to claim sovereign immunity in the English courts to defeat her claim."
The difficulty is that neither the late King nor the late King's estate was sued in this action and any attempt to bring what is now the late King's estate in to the action would be objected to on the grounds of limitation. The claim against the Defendant is one of personal liability not as agent for the late King. Thus if the Claimant establishes that the Defendant is personally liable there is no question of sovereign immunity. Conversely if the Defendant establishes that he was acting as agent for the late King the claim fails irrespective of the claim to sovereign immunity.
This point also troubled the Supreme Court when it ultimately adjourned the Defendant's application for permission to appeal.
The late King died on 1st August 2005.
MATRIMONIAL PROCEEDINGS
On 16th January 2004 the Claimant commenced proceedings against the late King seeking financial provision under section 27 of the Matrimonial Causes Act 1973. In that action she swore an Affidavit on 15th January 2004 which was referred to in these proceedings. On 15th December 2004 Dame Butler-Sloss upheld the late King's claim for immunity from suit in the matrimonial proceedings. On 26th May 2005 the Court of Appeal made an order prohibiting the publication of various documents. As I have said the late King died on 1st August 2005 and on 9th November 2005 the Court of Appeal held that the matrimonial proceedings had abated with the death of the late King.
I attach to this judgment an "agreed" factual chronology (although it will be seen that some of the facts are not actually agreed).
THE CLAIM
The claim can be discerned from the Amended Particulars of Claim. It is alleged that the Claimant married the late King in March 1968 when he was then the Minister of Interior of Saudi Arabia. It is said that at some point prior to 1970 he promised and assured the Claimant that he would provide for her financially in a manner that would enable her to live with the dignity and respect befitting his wife. Thereafter it is stated (as was indeed the case) that the late King provided money to the Claimant.
On 13th June 1982 the late King was proclaimed King of Saudi Arabia and it is said that he continued to provide money from time to time and repeated his promise to the Claimant.
Whilst it is admitted that the late King had a stroke in 1995 it is also said that he failed to provide financially for the Claimant and accordingly her solicitors wrote a letter on 7th May 2003 to the late King including an Affidavit of the Claimant of the same date ("the Affidavit") she intended to rely upon in proposed proceedings under section 27 of the Matrimonial Causes Act 1973. I observe that those were the proceedings which were unsuccessful as set out above.
The primary claim is that the Claimant accompanied by a friend of hers Hama Mustafa-Hasan ("Mrs Mustafa-Hasan") went to the Dorchester Hotel on 19th June 2003. After a heated discussion the Claimant alleges that the Defendant agreed that he was willing to honour the terms of the late King's promise to provide financially for the Claimant for the rest of her life and offered the sum of £12m and the transfer of the Properties to her. In return the Claimant was to agree to withdraw and then withdraw certain factual assertions she had made about the late King ("the Agreement").
In purported performance of the Agreement at the Defendant's request the Claimant says she made a statutory declaration dated 20th June 2003 where she withdrew the assertions she made in the Affidavit to which the Defendant had taken exception ("the Statutory Declaration"). In addition she also obtained letters signed by her then solicitor Sara Simon of Burton Woolf and Turk and her then Barrister Philip J Marshall QC promising to keep confidential the information that had been provided to them by the Claimant ("the Letters"). Finally she arranged for a full written document to be prepared ("the draft Contractual Agreement") which was to be signed by the Defendant and herself dealing with the Agreement and provisions for its implementation.
The Claimant alleges that these documents ("the Documents") were provided to the Defendant in various ways but he ultimately refused to pay the money and procure the transfer of the Properties.
ALTERNATIVE AGREEMENT
The Claimant's primary case is that the Agreement was made and she provided the consideration. Her secondary case is that the Defendant became similarly obligated by requesting and receiving copies of the original versions of the Documents and that he thereby became contractually bound to pay the money and procure the transfer of the Properties ("the Alternative Agreement").
After I delivered the draft Judgment the Defendant in a note suggested that I should reconsider this aspect on the basis of paragraphs 13–16 of their written closing. I have considered those but I do not accept the analysis put forward by them. They refer to Mr Tager QC's opening (T1/115–116) and his analysis of the scenario. I agree with that analysis. It is clear that the Claimant would not be entitled to her benefits under...
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